tag:www.mattmlaw.com,2013-03-21:/blog/816232018-07-13T20:56:26ZMovable Type Enterprisetag:www.mattmlaw.com,2018:/blog//81623.33501502018-07-13T20:46:50Z2018-07-13T20:56:26Z
The old notion that marijuana is a "gateway drug" has been turned on its head byPennsylvania's recent decision allow medical marijuana for opiate addicts seeking to break free of dangerous and addictive drugs like heroin. As a criminal defense attorney, I have had many clients switch to marijuana as they tried to escape enslavement to opiates. Like any logical and rational person, I believe that if one is using marijuana instead of heroin, it is an improvement! But some probation officers and judges were not in agreement, and they used to have the law on their side. For too long, recovering opiate addicts would be thrown jail for smoking marijuana in violation of a zero-tolerance approach to illegal drug use while on probation. Pennsylvania's new, enlightened approach is especially noteworthy to those of us well-versed in the history of American drug policy. When imperial, scientific evidence showed that marijuana was not the "assassin of youth" portrayed by "Reefer Madness" era prohibitionists like Penn State's own Harry J. Anslinger, Drug War hawks adopted the "gateway drug" argument to justify continued cannabis prohibition. The long-discredited gateway drug argument posits that those who smoke marijuana would eventually move on to hard drugs like heroin, because most heroin addicts smoked marijuana before they ever tried heroin. The Gateway Drug fallacy is a classic example of correlation not equaling causation. Only a tiny percentage of marijuana users have ever gone on to use heroin. Likewise, most heroin addicts also smoked cigarettes and drank alcohol before ever trying heroin, but these drugs, which are certainly more harmful and more addictive than cannabis, were conveniently omitted from the "gateway drug" argument. Now, Pennsylvania has legally recognized marijuana as a "gateway drug" away from and not into opiate addition. Although there is medical research in support of this policy change, it is still a bold move, when one considers that there are still a few dinosaurs around in positions of power like US Attorney General Jeff Sessions, who cling to the notion that marijuana has no medicinal value and leads to hard drug abuse. I suspect that some people who use marijuana as a bridge away from opiates may eventually stop using marijuana and achieve full sobriety. Others may continue to smoke marijuana the rest of their lives as a buffer against relapse into opiate addiction. Either scenario is preferable to continued opiate addiction. Matt McClenahen is a criminal defense lawyer in State College, PA, home of Penn State University. He is a member of the NORML Legal Committee. ]]>
tag:mlfscpa2.firmsitepreview.com,2017:/blog//81623.32068592017-05-30T18:15:58Z2018-04-05T23:00:27Z
Misdemeanor and summary offense charges have been filed against a Nashville Predators fan who had the audacity to throw a dead catfish onto the sacred ice of PPG Paints Arena during Game 1 of the 2017 Stanley Cup Finals last night. Jacob Waddell of Nolenville, TN, who was lucky enough to procure a ticket which should have gone to a more-deserving Penguins fan, erroneously believed that throwing a dead catfish onto the ice would be as legally permissible in Pittsburgh as it is at Bridgestone Arena in Nashville. Neither Pens fans nor the Pittsburgh Police were amused by this rude gesture, and not only was Wadell ejected from the game, he now also finds himself charged with possessing instruments of crime, disrupting meetings and disorderly conduct.

I have not taken the time to do the research, but my guess is that this is the first time in the history of Pennsylvania that an alleged instrument of crime is a dead catfish. Normally, instruments of crime are things like tools used for burglaries or breaking into cars, but the definition of this crime is actually broad enough to cover just about any object, including a dead catfish. Pursuant to Section 907 of the Pennsylvania Crimes Code, an instrument of crime, is "anything specially made or specifically adapted for criminal use," or "anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." According to media reports, Waddell vacuum sealed the catfish and smuggled it into the arena in his compression shorts. He then pulled out the catfish in the restroom and hid it inside a promotional t-shirt handed out to fans as they entered the venue. Thus, Waddell specially modified the catfish for a criminal purpose, and he did not use it for the lawful purpose of cooking or feeding it to a fish-eating pet. Possessing an instrument of crime is a first degree misdemeanor punishable by a maximum penalty of 2.5 to five years of incarceration and a fine of up to $10,000.

Disrupting meetings is a rather obscure crime defined by Section 5508 of the Pennsylvania Crimes Code as disturbing or interrupting a lawful meeting or gathering with the intent of preventing it or disrupting it. Waddell was unable to prevent the Pens 5-3 victory, but he did disrupt it for a short time until the dead catfish could be removed from the ice. This offense is a third degree misdemeanor punishable by a maximum penalty of six to 12 months of incarceration and a $2,500 fine.

Lastly, Waddell is charged with the summary offense of disorderly conduct pursuant to 18 Pa.C.S.A. 5503(a)(4). Disorderly conduct takes various forms, with Subsection (a)(4) defined as creating a hazardous or physically offensive condition by any act which serves no legitimate purpose. I doubt that a Pittsburgh judge would be open to the argument that throwing a catfish onto the ice served the "legitimate purpose" of bringing good luck to the visiting Predators. A disorderly conduct conviction carries a maximum penalty of up to 90 days in jail and a $300 fine.

I have to give the Pittsburgh Police credit for being creative enough to charge possessing instruments of crime and disrupting meetings. When I watched the crime unfold live in the comfort of my living room, I thought Waddell would only be charged with disorderly conduct, which is the usual charge associated with inappropriate fan behavior at Pennsylvania sporting events.

All joking aside, I doubt Waddell is looking at any jail time for his stunt. In fact, if he has no prior criminal record, he may be able to avail himself of Pennsylvania's ARD (Accelerated Rehabilitative Disposition) program, which allows criminal charges to be dismissed and expunged after a defendant fulfills certain obligations. Usually, a defendant is required to perform community service, pay court costs and in some cases, undergo drug and alcohol counseling or anger management classes. Given the fact that Waddell is neither a Caps nor Flyers fan, he should be a good ARD candidate if he has not prior record.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068582016-08-29T21:29:55Z2018-04-05T23:12:03Z
A 21 year-old, Pennsylvania man has been charged with a non-residential burglary and sexual intercourse with an animal following an August 16, 2016, incident in Lancaster County. Ephrata Police allege that Travis Wagner entered a barn with the intent of committing a crime therein. Usually, theft is the crime intended to be committed when a person unlawfully enters a building and is charged with burglary. But in this case, the only thing allegedly stolen was the poor miniature horse's dignity and innocence.

The police allege that a witness saw a suspicious man enter a barn and then leave a short time later. Armed with a description of the vehicle and the license plate, the police were able to track down Wagner, who then allegedly admitted to entering the barn to have sex with a miniature horse. This confession is a classic example of why most suspects should keep their mouths shut when interrogated by police without a lawyer present!

Strangely enough, sexual intercourse with an animal is only a second degree misdemeanor in Pennsylvania, punishable by a maximum penalty of one to two years of incarceration and a $5,000 fine. Most people convicted of a second degree misdemeanor can expect probation if they have no prior record. By contrast, burglary of the barn at a time when no person is present is a second degree felony punishable by a maximum penalty of five to ten years of incarceration and a $25,000 fine. A defendant with no prior record could usually expect a sentence of probation or county jail followed by a period of parole, if convicted of this type of burglary.

Some may be surprised to learn that sex with an animal is not a SORNA offense in Pennsylvania, meaning that a person convicted of this offense does not have to register as a sex offender. SORNA stands for "Sexual Offender Registration and Notification Act," and it replaced the older Megan's Law. Like Megan's Law, SORNA determines which offenses require one to register as a sex offender and for how long. For whatever reason, the drafters of SORNA did not deem sex with an animal to be as bad as a 19 year old high-school janitor having sex with an 18 year-old student. The 19-year old janitor in this scenario would be required to register as a sex offender for 25 years if convicted of institutional sexual assault!

Pennsylvania has a long history of absurd laws surrounding sex. In fact, this is the state, which once accidentally legalized bestiality for a period of time. You can read about it in this blog post: http://www.mattmlaw.com/blog/2013/07/sex-offenses-bestiality-was-legal-in-pennsylvania-from-1995-to-1999.shtml

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068572016-08-23T11:06:10Z2018-04-06T09:26:05Z
The Penn State alcohol policy has been an abject failure. Irresponsible and excessive alcohol consumption appear to be at an all-time high in Happy Valley, yet attempts to curtail drinking have only made things worse. So how did we get to a place where Mount Nittany Medical Center can expect alcohol overdoses every weekend and underage drinking an public drunkenness charges clog the local magisterial district courts? The sad reality is that Penn State's alcohol policies have had the unintended consequence of encouraging students to drink hard liquor instead of beer.

Believe it or not, kegs were once allowed in the Penn State dorms until 1984, or so I have been told. And in my Penn State undergrad days, kegs were a staple of every frat and apartment party. Yet kegs in State College are now relegated to house parties and bars, as apartments eventually joined the university's keg ban in a misguided effort to discourage excessive drinking. Likewise, Penn State has since imposed an outright ban on all alcohol in the dorms, even for those over 21.

These policies have backfired, just like they did during Alcohol Prohibition, our nation's only public policy blunder to fail more miserably than the War on Drugs. Students are not going to stop drinking alcohol because it is banned or restricted. Alcohol is simply too engrained in our Western culture, coupled with the fact that the most socially acceptable time to party is in one's youth. During Prohibition, bootleggers smuggled hard liquor because it takes up less space than beer and wine. The same thing now repeats itself on the Penn State campus. It is a lot easier to smuggle in a handle of vodka than a case of beer, and it is a lot easier to dispose of one empty bottle than 24 empty bottles or cans.

When Penn State students drink now, bad things are far more likely to happen than in the past. The overwhelming majority of underage drinking and public drunkenness cases I see these days arise from hard liquor. My clients tell me that a lot of parties do not even have beer; there is only hard liquor. And after two or three years of drinking hard liquor underage, these students will have been trained to drink hard liquor instead of beer once they turn 21.

Off campus, the keg ban has completely changed the Penn State drinking culture for the worse. If you cannot have kegs, then the only feasible and economical way to serve a lot of people is through hard liquor. Go to the Hamilton Street State Store Thursday through Saturday, and you will see young men in Greek-letter shirts filling up shopping carts with cheap hard liquor in plastic bottles, destined for the mouths of lightweight freshmen, who will be doing shots and guzzling jungle juice, instead of drinking cheap beer like their Nittany Nation ancestors.

As everyone knows except American college freshmen, no one should ever drink hard liquor unless they have had experience with training-wheel drinks like beer and wine. That is precisely why the drinking age in Germany is 16 for beer and wine, but 18 for hard liquor. That is the kind of law you get from a people known for Mr. Spock-like rational thinking, an obsession with safety and a love of drinking.

In my undergrad days, we had a beer-based drinking culture, and the alumni even older than me will tell you the same thing. Of course people got drunk, but hospital trips were rare. This is because it is incredibly difficult to overdose on beer, while hard liquor can pose a challenge to even the most seasoned boozers. And this is why beer drinking should be encouraged! If young people are going to drink, and we know they will, then they should be drinking beer.

Obviously, Penn State cannot actively encourage beer drinking, but it could at least stop inadvertently encouraging hard liquor consumption by discouraging beer drinking. I would have no problem with banning hard liquor in the dorms, while allowing beer and wine. The keg ban in the frats and downtown apartments must end. Until Penn State returns to its drinking culture of yore, we will continue to see irresponsible drinking, which creates a negative externality for the entire community.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068562016-08-19T18:41:54Z2018-04-06T09:55:03Z
"Marijuana is decriminalized in State College! It is now the equivalent of a parking ticket!" Thanks to some irresponsible and inaccurate media reports coupled with a misunderstanding of criminal law, this is the misinformed belief a lot of Penn State students and Centre County residents now have. Given all the confusion generated by this ordinance, it is incumbent upon criminal defense lawyers like me to set the record straight. The bottom line is that the decriminalization ordinance is essentially symbolic, and will have little if any effect on the Penn State community.

First of all, a local government does not have the authority to completely decriminalize marijuana, because a local government cannot override state criminal laws. Marijuana and drug paraphernalia remain crimes under the Pennsylvania Drug, Device and Cosmetic Act. The new State College Borough marijuana ordinance gives the State College Borough Police the option of charging a defendant with a summary offense local ordinance instead of the conventional, criminal charge, which leads to fingerprints, photographs and a criminal record with the Pennsylvania State Police and FBI.

The borough ordinance carries a fine of $250 for possessing less than 30 grams of cannabis and a $350 fine for smoking marijuana in public, while possession of a small amount of marijuana under state law carries the following maximum penalties: a fine of up to $500, incarceration or probation not to exceed 30 days and a six month driver's license suspension. Additionally, a conviction of any drug possession offense renders one indelible for federally-subsidized student loans. A person convicted of the borough ordinance would not face jail time or probation, a driver's license suspension or student-loan ban. An ordinance violator would also not be fingerprinted and photographed at the Centre County Correctional Facility.

Contrary to what at least one local media outlet reported, the decriminalization ordinance does NOT make possession of marijuana in State College Borough the equivalent of a parking ticket! If you pay a parking ticket on time, there is absolutely no record of it for anyone to find, not to mention the fact that potential employers are not going to look at a parking ticket the same way as marijuana possession charge. Even though a person charged with an ordinance violation will not be in the FBI and State Police criminal record data bases, he or she will have a record, which anyone with internet access can see. The docket sheet will be freely available on the AOPC (Administrative Office of Pennsylvania Courts) website, just like every crime from underage drinking to homicide.

Most background checks used by employers and landlords are not done by the FBI and State Police. Rather, most background checks are performed by private companies, which will pull a background check on prospective employees and tenants for a small fee. These background check services rely upon publicly available records on the Internet, such as the docket sheets on the AOPC website. Thus, if you plead guilty to marijuana possession under the borough ordinance, it is going to show up on most background checks, and I doubt that the typical employer is going to care whether you were charged with a borough ordinance or a crime when the underlying conduct is exactly the same.

That being said, the decriminalization ordinance will likely make very little difference for the thousands of cannabis consumers in Happy Valley. The State College Police already de facto decriminalized possession of a small amount of marijuana years ago by making it the lowest law enforcement priority, an approach common in American cities where there is "real crime" to deal with. In other words, the State College Police are not actively pursuing marijuana smokers, but they do still actively pursue cannabis sellers through time-consuming investigations. When State College Police respond to a noise complaint in an apartment building and happen to smell weed, they usually ignore it. This is because they are already overwhelmed with disorderly and violent drunk people, who negatively impact our community. By contrast, marijuana smokers are not bothering anyone.

This is not to say that State College Police never charge anyone with small amount of marijuana and drug paraphernalia. They do file such charges, albeit at a small fraction of what we see from the Penn State Police. Most commonly, this involves a "collateral damage" scenario, where the police get a search warrant for a house or apartment after a resident sold drugs to a confidential informant or undercover cop. If the subsequent search reveals that roommates had marijuana and/ or drug paraphernalia for personal use, these collateral damage roommates will normally be charged with misdemeanors, while the guy who sold drugs will be charged with felonies. Additionally, those brazen enough to toke in public or in parked vehicles should not expect the State College Police will look the other way.

I am curious to see whether the State College Police will start handing out borough ordinance citations for marijuana possession in cases, which would have been completely ignored in the past. It takes a lot less time and resources to file a citation than to file criminal charges, which require a mandatory court appearance for the police officer.

The Penn State Police take a very different approach to marijuana than their Borough Police brethren. The Penn State Police do actively enforce the marijuana laws. They do not ignore the smell of weed emanating from dorm rooms. In fact, they will even wake up a magisterial district judge at 3:00 a.m. to get a search warrant, if a student denies permission to search his or her dorm room. Consequently, almost all the small amount of marijuana and drug paraphernalia charges we see are filed by Penn State Police. And the Penn State Police do not file borough ordinance citations, even if an offense occurs on the parts of Penn State's campus, which are technically in the borough. If you are caught with marijuana on campus, you will still be charged criminally.

It is important for members of the Penn State and State College cannabis community to know that the new ordinance has not significantly changed things. You should not suddenly become brazen and carless about your cannabis consumption, especially if you live on campus. And if you live off campus and are charged under the new ordinance, you absolutely, positively should not plead guilty under the mistaken belief that it is just like a parking ticket! You should first talk to a criminal defense attorney, who may be able to help you avoid a conviction, which could negatively affect your future job prospects.

Matt McClenahen is a Penn State alumnus, State College criminal defense lawyer and member of the NORML Legal Committee.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068552016-08-19T18:41:54Z2018-04-06T09:55:52Z
"Marijuana is decriminalized in State College! It is now the equivalent of a parking ticket!" Thanks to some irresponsible and inaccurate media reports coupled with a misunderstanding of criminal law, this is the misinformed belief a lot of Penn State students and Centre County residents now have. Given all the confusion generated by this ordinance, it is incumbent upon criminal defense lawyers like me to set the record straight. The bottom line is that the decriminalization ordinance is essentially symbolic, and will have little if any effect on the Penn State community.

First of all, a local government does not have the authority to completely decriminalize marijuana, because a local government cannot override state criminal laws. Marijuana and drug paraphernalia remain crimes under the Pennsylvania Drug, Device and Cosmetic Act. The new State College Borough marijuana ordinance gives the State College Borough Police the option of charging a defendant with a summary offense local ordinance instead of the conventional, criminal charge, which leads to fingerprints, photographs and a criminal record with the Pennsylvania State Police and FBI.

The borough ordinance carries a fine of $250 for possessing less than 30 grams of cannabis and a $350 fine for smoking marijuana in public, while possession of a small amount of marijuana under state law carries the following maximum penalties: a fine of up to $500, incarceration or probation not to exceed 30 days and a six month driver's license suspension. Additionally, a conviction of any drug possession offense renders one indelible for federally-subsidized student loans. A person convicted of the borough ordinance would not face jail time or probation, a driver's license suspension or student-loan ban. An ordinance violator would also not be fingerprinted and photographed at the Centre County Correctional Facility.

Contrary to what at least one local media outlet reported, the decriminalization ordinance does NOT make possession of marijuana in State College Borough the equivalent of a parking ticket! If you pay a parking ticket on time, there is absolutely no record of it for anyone to find, not to mention the fact that potential employers are not going to look at a parking ticket the same way as marijuana possession charge. Even though a person charged with an ordinance violation will not be in the FBI and State Police criminal record data bases, he or she will have a record, which anyone with internet access can see. The docket sheet will be freely available on the AOPC (Administrative Office of Pennsylvania Courts) website, just like every crime from underage drinking to homicide.

Most background checks used by employers and landlords are not done by the FBI and State Police. Rather, most background checks are performed by private companies, which will pull a background check on prospective employees and tenants for a small fee. These background check services rely upon publicly available records on the Internet, such as the docket sheets on the AOPC website. Thus, if you plead guilty to marijuana possession under the borough ordinance, it is going to show up on most background checks, and I doubt that the typical employer is going to care whether you were charged with a borough ordinance or a crime when the underlying conduct is exactly the same.

That being said, the decriminalization ordinance will likely make very little difference for the thousands of cannabis consumers in Happy Valley. The State College Police already de facto decriminalized possession of a small amount of marijuana years ago by making it the lowest law enforcement priority, an approach common in American cities where there is "real crime" to deal with. In other words, the State College Police are not actively pursuing marijuana smokers, but they do still actively pursue cannabis sellers through time-consuming investigations. When State College Police respond to a noise complaint in an apartment building and happen to smell weed, they usually ignore it. This is because they are already overwhelmed with disorderly and violent drunk people, who negatively impact our community. By contrast, marijuana smokers are not bothering anyone.

This is not to say that State College Police never charge anyone with small amount of marijuana and drug paraphernalia. They do file such charges, albeit at a small fraction of what we see from the Penn State Police. Most commonly, this involves a "collateral damage" scenario, where the police get a search warrant for a house or apartment after a resident sold drugs to a confidential informant or undercover cop. If the subsequent search reveals that roommates had marijuana and/ or drug paraphernalia for personal use, these collateral damage roommates will normally be charged with misdemeanors, while the guy who sold drugs will be charged with felonies. Additionally, those brazen enough to toke in public or in parked vehicles should not expect the State College Police will look the other way.

I am curious to see whether the State College Police will start handing out borough ordinance citations for marijuana possession in cases, which would have been completely ignored in the past. It takes a lot less time and resources to file a citation than to file criminal charges, which require a mandatory court appearance for the police officer.

The Penn State Police take a very different approach to marijuana than their Borough Police brethren. The Penn State Police do actively enforce the marijuana laws. They do not ignore the smell of weed emanating from dorm rooms. In fact, they will even wake up a magisterial district judge at 3:00 a.m. to get a search warrant, if a student denies permission to search his or her dorm room. Consequently, almost all the small amount of marijuana and drug paraphernalia charges we see are filed by Penn State Police. And the Penn State Police do not file borough ordinance citations, even if an offense occurs on the parts of Penn State's campus, which are technically in the borough. If you are caught with marijuana on campus, you will still be charged criminally.

It is important for members of the Penn State and State College cannabis community to know that the new ordinance has not significantly changed things. You should not suddenly become brazen and carless about your cannabis consumption, especially if you live on campus. And if you live off campus and are charged under the new ordinance, you absolutely, positively should not plead guilty under the mistaken belief that it is just like a parking ticket! You should first talk to a criminal defense attorney, who may be able to help you avoid a conviction, which could negatively affect your future job prospects.

Matt McClenahen is a Penn State alumnus, State College criminal defense lawyer and member of the NORML Legal Committee.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068542016-08-19T11:00:43Z2018-04-05T21:02:28Z
DUI charges are not limited to those who drive motor vehicles on public roads. In fact, a Pennsylvania Amish teen recently learned the hard that you can get a DUI operating ANY vehicle on a public roadway, including a horse-drawn buggy. Pennsylvania State Police recently filed charges of DUI and underage drinking against an 18 year old Amish man in Indiana County. The police pulled over the buggy when they saw two young men riding on the roof. All four buggy passengers were under 21 and were charged with underage drinking.

With shows like "Amish Mafia" and the documentary "Devil's Playground," most "English" people are now aware of Rumspringa, a period when Amish youth are given freedom to enjoy temptations of the secular world before deciding whether or not to join the church. Thus, I doubt that anyone is really shocked to hear that Amish youth drink just like their English age-contemporaries. However, a lot of people might be surprised to learn that Pennsylvania DUI laws apply to any vehicle on a public road. You can even get a DUI on a bicycle. Most of my clients who have had bike DUIs had absolutely no clue that they could get a DUI on a bike, and likewise, I suspect that the unfortunate buggy driver may not have been aware that he could get a DUI.

Most first-time DUI offenders are eligible for a program called ARD, which stands for Accelerated Rehabilitative Disposition. Successful completion of the program can lead to dismissal and expungement of the charges, but most ARD-DUI defendants lose their driver's license for a period of time. Yet the unfortunate Amish teen driver will be able to continue to drive his buggy. One does not need a driver's license to operate a horse and buggy on a public road any more than one needs a license to ride a bike.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068532016-06-09T17:57:24Z2018-04-05T23:14:29Z
Penn State has long resisted alcohol sales at Beaver Stadium, but as universities search for new revenue streams, the trend is moving towards college-stadium beers sales, just as pro-stadiums have done for as long as anyone can remember. In May of this year, Penn State announced that it would allow beer and wine sales in the hoity-toity suites and club seats, while the masses would have to get their drink on the old fashioned way in the Beaver Stadium parking lots. In 2015, Ohio State took the exact same segregated alcohol sales approach, but in 2016, all of Buckeye Nation will be able to drink beer in the stadium, not just the well-heeled in club seats.

This begs the obvious question as to whether Beaver Stadium will allow stadium-wide beer sales after the 2016 season. It should be noted that the revenue generated by Ohio Stadium beer sales has been ear-marked to fund two full-time positions with Ohio State University Police. College sports in now a multi-million dollar business, and it is becoming increasingly hard to justify "leaving money on the table." Perhaps Penn State will likewise be tempted to use beer sales to fund police services or offset other university expenses.

Personally, I believe Beaver Stadium beer sales would be more positive than negative. First of all, the university would make a lot of money at home games. More importantly, it might actually decrease the amount of excessive drinking. This might sound counter-intuitive, but West Virginia University has seen a decrease in alcohol-related offenses on game day since allowing stadium beer sales. Currently, certain people chug as much alcohol as they can right before kick-off, knowing that they will not have a chance to drink for the next three or four hours. If people know they can buy beer in the stadium, they are less likely to pound drinks right before kick-off. Yet once they are inside the stadium, the excessive prices will discourage people from over-indulging.

Another reason to allow alcohol sales is that it would open up the possibility of hosting other sporting events, such as an annual NFL pre-season clash between the Steelers and Eagles or an outdoor NHL clash featuring the Penguins and Flyers. The NFL and NHL generally will only play in stadiums which sell the beers that pay big money to sponsor the leagues. We may also see some long-awaited, pre-season, soccer friendlies between top-flight European clubs. In 2014, Michigan's Big House packed in 109,318 people for a friendly between Real Madrid and Manchester United. Soccer fans in Nittany nation were green with envy. There is no reason why we could not do the same thing here, as well as hosting U.S. Men's and Women's national team matches. We have the third biggest stadium in the world, and it should be used more than eight times a year!

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068522016-05-05T18:23:09Z2018-04-05T21:05:29Z
Sixty-nine misdemeanor indecent exposure charges and one felony count of furnishing harmful items to a minor have been filed against a 19-year-old Arizona boy who exposed his penis in a yearbook photo prank. I call him a "boy" despite what the AP style manual says, because anyone who does this lacks the maturity to be considered an adult man. As the Red Mountain High School football team posed for its team picture last year, two players in the front row created a small gap for Hunter Osborn, standing in the second row, to expose his penis in the picture. Since the penile prank has come to light, Osborn has been very apologetic, indicating that he succumbed to peer pressure when his friends dared him to do it. Osborn was 18 when the photo was taken, so he has been charged as an adult.

The photo was included in the school yearbook and in the program sold at home games, but apparently, no one in a position of authority noticed the exposed penis for a year. Naturally, most people are not going to closely examine a high school football team picture, and they certainly are not going to expect to see an exposed penis on display. Thus, I can see how most people would assume they are seeing something more plausible, like a finger or thumb.

It appears that someone in the Mesa Police Department had a sense of humor by charging the Bevis and Butthead style giggle-inducing 69 counts, but Detective Steve Berry explained that he chose that number because there were 69 students and 10 faculty members present when the photo was taken. He further explained that he would drop a count for each "victim" over 18 who requests that the charge be dropped.

There is a common misconception that one cannot be charged with a crime if it was "just a prank." As a criminal defense lawyer in a college town, I hear from parents and students alike who are absolutely shocked that criminal charges can arise from a "mere prank". I am not sure where this misconception comes from, but you will never hear a judge give a jury instruction like this: >>Ladies and gentleman of the jury, the defendant has asserted the affirmative defense of "it was just a prank." If you find by a preponderance of the evidence that it was "just a prank," then you must find him not guilty.<<

Although I am aware of no jurisdiction, which recognizes a "but it was just a prank" defense, Mr. Osborn's state of mind should be a mitigating factor when it comes to plea negotiations or sentencing. His actions were clearly the result of an immature mindset resulting in an inability to fully appreciate the consequences. This boy is not in the same category as a real criminal, let alone a sex offender. The embarrassing publicity itself has been its own form of punishment. The appropriate result would be a pretrial adjudication program where the charges are dropped after Mr. Osborn does some community service and pay court costs. Hopefully, the Arizona criminal justice has such an option for this case.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068512016-04-14T19:41:54Z2018-04-05T21:06:20Z
Marijuana decriminalization will soon be the subject of a public hearing before the State College Borough Council. This hearing could come as soon as May 2, 2016. Although a local government has absolutely no authority to override state or federal criminal laws, it can create borough ordinances subjecting violators to fines and court costs, but not jail time. Thus, if the Borough Council creates an ordinance subjecting a person who possesses a small amount of marijuana to a fine, then the State College Police would have the option of issuing a borough ordinance citation rather than charging a suspect with a misdemeanor under the Pennsylvania Drug Device and Cosmetic Act. The proposed ordinance would cover up to 30 grams of marijuana or up to eight grams of hashish, and subject violators to a $250 fine for possession or a $350 fine for violators smoking in public. So the natural question is whether such an ordinance will have any impact on Penn State students and others in the local cannabis community. I think it is too early to tell. State College Police have already made possession of marijuana for personal use the lowest law enforcement priority. Charges for possession of drug paraphernalia and small amount of marijuana in the borough are very rare, especially when one considers the ubiquity of cannabis consumption these days. There were only 29 small amount of marijuana charges filed in State College Borough in 2015, and based upon my experience, I suspect most of these were "collateral damage" cases. Collateral damage is a term used by both law enforcement and defense attorneys to describe a situation where the police get a search warrant following a controlled-drug buy, and then the police find drugs in the possession of roommates who had nothing to do with the drug sale to a confidential informant. Personal use marijuana cases in State College Borough are so rare that I remember most of cases I have had in this category. By contrast, the Penn State Police aggressively enforce the marijuana prohibition laws, even going so far as wake up judges in the middle of the night to obtain search warrants for dorm rooms in response to the smell of marijuana. I have had so many personal use marijuana cases on the Penn State campus that I lost track years ago. It will be interesting to see whether the State College Police actually enforce the marijuana laws more if they have the option of handing out a citation rather going through the more time-consuming process of filing misdemeanor charges. Perhaps they will, but I doubt that State College Police are going to seek a search warrant every time they smell burnt cannabis in a student apartment hallway. That would be a waste of valuable police resources. The State College Police are far too busy dealing with the mayhem wrought by drunk people. Matt M. McClenahen is a Penn State alumnus, criminal defense attorney in State College, PA, and member of the NORML Legal Committee. http://www.mattmlaw.com/Criminal-Defense-Overview/Marijuana-Related-Offenses.shtml]]>
tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068502016-03-01T22:42:11Z2018-04-05T21:07:05Z
State Patty's Day made a resurgence in 2016, with a corresponding increase in alcohol-related arrests and overdoses over 2015. After the Penn State drinking holiday gradually decreased in magnitude over the past few years, restrictions were relaxed on bars, fraternities and apartment parties this year. Although arrests and police calls were up, 2016 paled in comparison to 2011, the year with the worst State Patty's Day behavior. Naturally, some responsible adults in State College and even some undergrad students are alarmed and outraged by the collateral damage caused by a massive army of drunkards.

But what if Penn State had a different kind of green holiday. What if we had a holiday dedicated to marijuana instead of alcohol? The simple answer is that things would certainly be a lot less destructive if we had an open-air concert where people freely partook in cannabis and refrained from booze. Any problems likely to arise from such a gathering would be from drunks or people wigging out on LSD. The stoners would not be a problem.

Alcohol is a directly criminogenic drug. People do crazy and inappropriate things when they are drunk, which they would never do sober. A large percentage of my caseload at any given time is comprised of polite, well-socialized students from good families, who simply lost control of their cognitive functioning after ingesting way more alcohol than they can handle. In their inebriated states, these students often do things to violate the rights of others or take up valuable medical services resources.

By contrast, another large percentage of my caseload is comprised of polite, well-socialized students from good families, who merely possessed or sold marijuana. I rarely, if ever, have a marijuana client who got into a fight, damaged or vandalized property, committed a sexual assault, unwittingly walked into the wrong house or apartment, vomited on apartment steps, urinated in an elevator, or had sex in the backyard of unsuspecting borough residents. The marijuana clients usually did nothing more than merely possess or sell parts of a plant and/ or devices used to smoke said plant, otherwise known as "drug paraphernalia."

Of course, the great irony is that alcohol is legal for anyone over 21 while marijuana prohibition remains in effect for everyone in Pennsylvania. I would never advocate for a return to alcohol prohibition. Not only did the 18th Amendment and Volstead Act account for one of the greatest domestic policy failures in US history, such a prohibitionist stance would also be rather hypocritical for someone like me who honors his Celtic and Teutonic heritage by imbibing in Scotch and German beer. Instead, I advocate for the end of cannabis prohibition. It is absurd and illogical to outlaw a plant, which imposes few if any negative externalities, while a highly criminogenic drug like alcohol is legal. If marijuana legalization leads to more people smoking weed, then that will be a very positive development if it means these same people are drinking less.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068492016-02-12T12:02:31Z2018-04-06T10:02:42Z
The quick answer is using fake IDs in State College is not a good idea. Occasionally fake IDs will work at a Penn State bar, but if you use a fake ID in this town enough times, you will eventually get caught. A common refrain I hear from clients is "I used this ID all semester with no problem until I got this one bouncer." Others are not so lucky and are busted the first time they try to use a fake ID.

Bar tenders and bouncers in State College tend to be much more vigilant than they are in other parts of Pennsylvania. Also, I suspect there are bars in other parts of the state, which will knowingly serve people with fake IDs, as the fake ID may create plausible deniability. But no Penn State bar will jeopardize its valuable liquor license by knowingly serving someone with a fake ID.

If you are lucky, the bouncer or bar tender will just seize the fake ID and tell you to leave, but sometimes, they will call the police. Thus, trying to use a fake ID in State College is a high risk undertaking, which is not worth the risk. So what exactly are the consequences if you get caught trying to use a fake ID to get into a bar, six pack shop, distributor or state store? If you have a fake driver's license, you could be charged with violations concerning licenses pursuant to 75 Pa.C.S.A. 1571(1)(5). This is a first degree misdemeanor with a maximum penalty of 2.5 to five years of incarceration and a fine not to exceed $10,000. Very few people would get jail time for this offense, but a conviction would still leave you with a damaging criminal record. If you are lucky, you may qualify for a first-time offender's program, which could ultimately allow you to emerge without a criminal record.

Rather than filing the more serious charge of violations concerning licenses, the police will sometimes cut defendants a break and file the less serious summary offense charge of carrying a false identification card by a minor pursuant to 18 Pa.C.S.A. § 6310.3(a). This offense is punishable by up to 90 days in county jail and a fine not to exceed $500. Someone charged with this offense should talk to an attorney before responding to the citation, as there are ways to avoid a conviction and citation record even if you are factually guilty.

Anyone convicted of either violations concerning licenses or carrying false identification card by a minor faces a mandatory driver's license suspension if convicted. The suspension periods are the same as for underage drinking. Underage drinking and the misdemeanor and summary offense versions of possession of a fake ID fall under the rubric of "minor's law" offenses. A first offense minor's law conviction carries a 90 day driver's license suspension. A second conviction carries a one year suspension, while third and subsequent convictions carry two year driver's license suspensions.

In short, State College is probably the least safe place to use fake IDs in all of Pennsylvania. A lot of visitors from other schools and Penn State students from places like New York City and Philadelphia often find out the hard way. If you are charged with possession of a fake ID, you should contact an experienced criminal defense attorney, who may be able to engage in some damage control.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068482016-02-09T12:00:50Z2018-04-05T23:16:54Z
A marijuana decriminalization bill is expected to be introduced this week at the Harrisburg City Counsel legislative session. The bill would allow police to charge possession of a small amount of marijuana as a local ordinance summary offense with a $100 fine for a first offense and $200 fine for a second offense. Anyone unlucky enough to be caught a third time would be charged with the usual ungraded misdemeanor under the Pennsylvania Drug Device and Cosmetic Act. A "small amount" of marijuana in Pennsylvania is defined as less than 30 grams for personal use.

Harrisburg Mayor Eric Papenfuse has publicly endorsed the proposed legislation, noting that it will allow for more efficient use of police resources and spare low level offenders from the damaging effects of a criminal record. Yet he did not want to sound like he was condoning marijuana use, telling PennLive.com, "We're not decriminalizing it. We're not pro-drug use, but we are simply aware of the benefits of reducing it to a summary offense."

Despite Papenfuse's denial that the bill would decriminalize cannabis, decriminalization is precisely what this bill would do. Papenfuse should have said "We are not going to legalize it." Decriminalization involves reducing penalties and collateral consequences, while something remains illegal. A person convicted with possession of less than 30 grams of marijuana under Pennsylvania law faces up to 30 days in jail, a fine of up to $500, a mandatory six month driver's license suspension and disqualification from federally subsidized student loans. He or she will also be fingerprinted and photographed and have a criminal record in the FBI and Pennsylvania State Police data bases. By contrast, the proposed local ordinance violation would carry no jail time, no driver's license suspension, have no effect on student loans and not show up on an FBI or State Police background check.

It should be noted, however, that a violator of the local marijuana ordinance would still have a record on the Administrative Office of Pennsylvania Courts website. Thus, private companies which perform background checks for a small fee will still pull up local ordinance violations for possession of a small amount of marijuana, just like they pull up other summary offenses like underage drinking, public drunkenness and disorderly conduct.

It should also be noted that this proposed legislation does not address drug paraphernalia, which includes things like bowls, bongs, vapes, rolling papers and even plastic bags used to hold cannabis. Small amount of marijuana charges are almost always accompanied by drug paraphernalia charges, and ironically the penalty for possessing drug paraphernalia is greater than the penalty for possessing a small amount of marijuana. The maximum penalty for drug paraphernalia in Pennsylvania is six to 12 months incarceration and a $2,500 fine. Presumably, Harrisburg Police will be expected to use sound judgment and just charge the local ordinance when someone is caught with paraphernalia and a small amount of cannabis.

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068472016-01-27T12:01:12Z2018-04-05T21:18:51Z A lot of people have asked me about hate crimes laws ever since a Penn State student was recently charged with ethnic intimidation, terroristic threats, simple assault, stalking, disorderly conduct, public drunkenness and underage drinking following an incident in which the defendant allegedly verbally and physically assaulted a student of East Indian descent. Not surprsingly, the defendant was highly intoxciated. The felony ethnic intimidation charge was dismissed by a magisterial district judge, but was then refiled by the Centre County District Attorney's Office, with the hopes that a different judge will bind the charge over for trial.

Pennsylvania does not have any offenses officially called "hate crimes." Rather, the term, "hate crime" is a creation of the media and activist groups, not law makers. Pennsylvania does, however, have a crime known as ethnic intimidation, found at section 2710 of the Pennsylvania Crimes Code, and this is the crime normally charged in situations, which the media and activists refer to as "hate crimes."

Ethnic intimidation is, for lack of a better term, an add-on crime. This crime cannot exist independently, like a normal crime. It is filed along with other crimes, if law enforcement believes that a crime was motivated by "malicious intention" due to the victim's race, color, religion or national origin. The Pennsylvania General Assembly chose the awkward term "color" even though no biologist, anthologist or social scientist in the modern world would ever use the term "color" to classify groups of humans. Underlying offenses include crimes of violence like aggravated or simple assault, or property crimes like arson, criminal mischief or criminal trespass.

Ethnic intimidation is graded one degree higher than the underlying offense. Thus, if an underlying offense of criminal mischief is a mere summary offense, the accompanying ethnic intimidation charge would be a third degree misdemeanor, while a first degree misdemeanor terroristic threat motivated by racial hatred would be accompanied by an ethnic intimidation charge graded as a third degree felony.

Only ethnic and religious groups are protected by the ethnic intimidation statute. Crimes motivated by political orientation, gender or sexual orientation are not covered by any special law in Pennsylvania.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, home of Penn State University. http://www.mattmlaw.com/Criminal-Defense-Overview/Alcohol-Offenses-DUI.shtml

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tag:mlfscpa2.firmsitepreview.com,2016:/blog//81623.32068462016-01-16T16:24:28Z2018-04-05T21:19:51Z The Bill Cosby prosecution is on the brink of collapse. This morning, Michael Smerconish of CNN dropped a bombshell, reporting that former Montgomery County DA Bruce Castor had an agreement with Cosby's attorney Patrick J. O'Connor in 2005 not to prosecute Cosby, should the comedy legend be willing to testify in a deposition in the civil case filed by accuser Andrea Constand. Castor believed that he could not win a criminal conviction against one of the most beloved and respected figures in America, who was even more revered in the Philadelphia area than the rest of the country. Thus, Castor sought to create an avenue for Constand to at least get monetary compensation in a civil case.

Cosby accepted Castor's offer, and proceeded to make inculpatory statements in a civil deposition. This transcript was sealed, and pursuant to the agreement, Castor never used it to pursue criminal charges. Recently, however, a judge ordered that the transcript be unsealed, and its contents became available to the media. Cosby eventually settled the civil case for an undisclosed sum of money. Given the fact that Cosby was represented by a highly-skilled and experienced attorney, one can only assume that Attorney O'Connor would have permitted his client to testify if and only if there was an ironclad promise not to prosecute.

During last year's Montgomery County District Attorney election, Castor's handling of the Cosby case became an election issue, with then First Assistant District Attorney Kevin Steele all but promising to prosecute Cosby should he win the election. Yet in September 2015, Castor sent a detailed email to then Montgomery County District Attorney Risa Ferman explaining the deal he made not to prosecute Cosby. This is a binding agreement, and a new district attorney cannot renege on this deal. Nevertheless, Steele's office filed criminal charges shortly before the statute of limitations was set to expire.

The very best outcome that the Commonwealth can hope for is that a Common Pleas Court judge will "suppress" Cosby's deposition testimony, meaning that it cannot be used in the Commonwealth's case in chief at trial. If, however, Cosby were to take the stand and testify in an inconsistent manner with his deposition, then prosecutors can use the prior inconsistent testimony to impeach Cosby's credibility. The Commonwealth could still prosecute the case without Cosby's inculpatory statements, however, obtaining a conviction would not be nearly as easy as it would be with damaging admissions from Cosby that he would give sedatives to women, which when combined with alcohol can render people unconscious, coupled with admissions that he cheated on his wife on numerous occasions.

It is also possible that the judge will quash the criminal informations filed against Cosby, barring further prosecution. This would appear to be the correct decision. The Montgomery County District Attorney made a deal with Cosby in 2005 and Cosby relied upon this deal. Had Attorney O'Connor known that a new DA would not honor the deal, then he certainly never would have allowed his client to incriminate himself in a deposition.

Even if Cosby is not prosecuted and convicted, his reputation has still been destroyed. Numerous women spread out over several generations and over a large geographic area have all come forward with similar stories, even though the statute of limitations has long since expired, preventing them from any civil monetary compensation. Every single one of them was attractive and each described the same modus operandi.

To Gen-X Americans like me, Cosby was a childhood role model, and I am sure more than a few high school students were persuaded to go to Temple due to Cosby's efforts as a recruiter for his alma mater. Even I briefly considered Temple, but my ties and allegiance to Penn State were just too strong. It's a shame to see it all end this way for The Cos.

Matt McClenahen is a criminal defense attorney in State College, PA, who grew up watching "Fat Albert" and "The Cosby Show," just like every other American kid his age.